According to California Penal Code (PC) Section 802 (a), the statute of limitations (SOL) for a misdemeanor driving under the influence (DUI) is one year after the commission of the offense. According to PC Section 801, the statute of limitations for a felony DUI is three years after the commission of the offense. A first, second or third DUI or a charge of “wet reckless” (a plea agreement where someone charged with a DUI would plead guilty or no contest to a lesser offense) are usually filed as misdemeanors. A fourth or subsequent DUI may be filed as a felony DUI.
What Is a “Wobbler Offense" in California?
According to the California case of People v. Statum (2002), a “wobbler” offense is an offense that can be prosecuted either as a misdemeanor or a felony. The term of incarceration for a misdemeanor is up to a year in county jail. The term of incarceration for a felony is a year and a day or more in state prison. A California DUI is a wobbler offense. When there are aggravating factors in a case, even a first-time DUI arrest can be charged as a felony.
Aggravating Factors in a DUI
Aggravating factors in a DUI can include excessive speeding, reckless driving, having a minor passenger in the vehicle at the time of the arrest, causing damage to public or private property and causing an injury or death. According to California Vehicle Code (VC) Section 23578, an excessive blood alcohol concentration (BAC) of 0.15 percent or above can be an aggravating factor.
Aggravating factors can increase the penalties for a DUI case. They can cause an offender to spend more time in jail or attend a longer DUI school. Certain factors can change a misdemeanor charges to a felony, including committing a fourth or subsequent DUI within 10 years or causing serious bodily injury or death.
Mitigating Factors for a DUI
Mitigating factors for a DUI can lessen the penalties in a DUI case, but they cannot transform a second or third DUI into a first DUI. When an offender commits a second or third DUI within 10 years, the criminal court must follow certain sentencing requirements. Mitigating factors can impact a prosecutor’s decision about charging a fourth or subsequent DUI as a misdemeanor, rather than a felony.
When a prosecutor charges a fourth or subsequent DUI as a misdemeanor, the offender is usually subject to the same penalties as if they were sentenced in a third DUI. The criminal statute of limitations for a fourth or subsequent DUI charged as a misdemeanor will be one year from the commission of the offense. Mitigating factors include a BAC just over the legal limit, a traffic stop for an equipment violation like a burned-out headlight rather than a moving violation, and enrolling in a voluntary substance abuse treatment program before the case comes to court.
Commission of the DUI Offense
The statute of limitations begins running from the date of the commission of the offense, not from the date of arrest, since an offender may be arrested for a DUI sometime after the commission of the act. For example, a first-time offender may be driving under the influence at 11:45 p.m. on November 1 and stop to buy more alcohol. The police then arrest them for a DUI at 12:01 a.m. on November 2. The one-year statute of limitations would begin running from November 1.
The rule applies even if the offender is arrested days after committing a DUI. Say the offender was driving while intoxicated and committed a hit-and-run on November 1, and the police arrest the offender at home on November 4. The statute of limitations would begin running November 1.
When the Statute of Limitations Doesn’t Apply
The statute of limitations for a DUI does not apply to a case in which the offender has not been arrested but the prosecutor filed charges within the limitations period. When an offender has not been arrested, there may be an active warrant out for their arrest. This is termed a case in warrant status. The fact that the offender was arrested on an old warrant does not allow them to raise a statute of limitations defense.
Statute of Limitations and Speedy Trial
Sometimes a prosecutor files DUI charges within the statute of limitations, but the case remains in warrant status. According to Serna v. Superior Court (1985), a question arises as to whether the offender can file a Serna motion. A Serna motion is a motion to dismiss based on the denial of a right to a speedy trial.
The Serna motion states there has been an unreasonable and unjustifiable delay in bringing an alleged offender to court following the arraignment.
Arraignment and Filing a Serna Motion
According to the Judicial Branch of California, the arraignment is the proceeding that takes place the first time an offender appears in court. In California, the arraignment usually takes place within 48 hours of the arrest when the offender is in custody. Weekends, court holidays, and mandatory court closure days do not count against the 48 hours. The deadline for arraignment depends on the time of day that the offender was arrested.
At the arraignment, there is a formal reading of a criminal charging document in the presence of the offender. This is meant to inform them of the charges. An offender must file a Serna motion at the arraignment or close to it. The motion must show that there has been a violation of the offender’s federal and California state speedy trial rights.
Read More: What Is an Arraignment Hearing?
The Serna Motion and Weighing the "Wingo" Factors
The motion must contain an analysis of four factors: the length of the delay; the reason for the delay; assertion of the right to a speedy trial; and prejudice. These factors are known as the Wingo factors from the U.S. Supreme Court case of Barker v. Wingo (1972).
Before ruling on a Serna motion, the court conducts a balancing test to determine whether to dismiss some or all of the charges. Usually, the prosecutor acknowledges there has been a delay but disputes the reason for the delay. The prosecutor may also dispute that the offender suffered prejudice or the level of prejudice they have suffered.
Previous DUIs Within 10 Years
According to VC Section 23550 and VC Section 23540, a DUI can count as a second, third or fourth DUI if the offender has committed a prior DUI within the preceding 10 years. A prior DUI conviction from another state counts if the other state defined a DUI as an offense that involved intoxication and impaired driving.
A prior California or out-of-state DUI that has been expunged and occurred within the last 10 years can count as a prior DUI. An offender who is unclear about whether a DUI counts as a prior DUI within 10 years should consult an experienced DUI defense attorney.
- California Penal Code: Section 801
- California Vehicle Code: Section 23103
- The Judicial Branch of California, California Courts: How Criminal Cases Work
- Justia: Serna v. Superior Court (1985)
- Justia: People v. Statum (2002)
- Lexis Nexis: Law School Case Brief, Barker v. Wingo (1972)
- California Vehicle Code: Section 23540
- California Vehicle Code: Section 23578
- Shouse Law Group: "Wet Reckless" as a Plea Bargain in DUI Cases
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.